Australia
Department of Justice (WA), Equal Justice Bench Book (2nd edition September 2021).
Section 1.2 of the bench book provides a discussion on the avoidance of bias and stereotyping. It states that, ‘[j]udicial officers need to ensure that they do not treat anyone as a stereotype and/or make false assumptions about a particular individual, based on what they believe most people from that individual’s group value, or based on how they believe most people from that individual’s group behave. Judicial officers need a reasonable understanding of the range of values, cultures, lifestyles and life experiences of people from different backgrounds, together with an understanding of the potential difficulties, barriers or inequities people from different backgrounds may face in relation to court proceedings’.
The bench book further notes that while it is important to understand which groups are most likely to experience inequity, discrimination and/or disadvantage (see the rest of the bench book for a discussion of these groups), ‘every individual is the product of many different influences. Characteristics such as ethnicity, gender, religious affiliation, disability, sexuality and socio-economic background may or may not have a determining influence on any particular individual’s values, life experience or behaviour’.
There is a discussion of gender bias at 10.3.1 & 10.3.2
Judicial College of Victoria, Victorian Sentencing Manual (2021).
[2.2.2.2.3] Apprehended bias: The bench book notes:
At sentencing the judge or magistrate should maintain a neutral role and avoid adopting an inquisitorial position. This does not mean they cannot disclose concerns about aspects of the case. In fact there may be circumstances where the failure to do so amounts to a denial of procedural fairness. As Kirby P said in Chow v DPP, ‘there is a fine line between excessive and unjudicial intervention…and candid disclosure of matters of concern to invite response’. [Chow v DPP (1992) 28 NSWLR 593, [606], cited with approval in R v Grillo [2003] VSCA 143, [17]].
In informing the parties of its developing views, a court should take care not to give rise to an apprehension of bias. That is, it should not create a perception that it may not bring an impartial and unprejudiced mind to its task. [Livesey v New South Wales Bar Association(1983) 151 CLR 288, 293-94; Clarkson v The Queen (2011) 32 VR 361, 393–94 [132] (‘Clarkson’)].
The expression of tentative views during argument on matters that the parties are then permitted to address does not manifest bias [Gild[24]]. But a greater number of judicial interjections and the degree of their intrusiveness or tone, considered within the context of the entire proceeding, may create a reasonable suspicion of prejudgment [R v Charter [2002] VSCA 214, [24]].
Judicial Commission of NSW, Equality before the Law: Bench Book (2022).
Section 1 explains the principle of equality before the law and duty of judicial officers to act fairly and without discrimination. 1.4 discusses the need for judicial officers to be conscious of any possible personal biases or prejudices about people from different backgrounds and actively seek to neutralise these. 2.3.4 cautions judicial officers not to let stereotyped views about Aboriginal people unfairly influence their assessment. 3.3.5.2 provides guidance on avoiding stereotyping people from CALD backgrounds. 4.4.5 cautions judicial officers not to let personal views about a particular religion’s views or practice unfairly influence their assessment. 7.2 discusses gender bias in court. 8.5.3 and 9.6.4 respectively caution judicial officers not to let stereotyped views about lesbianism, homosexuality or bisexuality or stereotyped views about gender diverse people unfairly influence their assessment.
Judicial Commission of NSW, Rachlinkski, J. et al (2021) Does unconscious racial bias affect trial judges?(Republished in Handbook for Judicial Officers).
Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the Implicit Association Test, have found that most white Americans harbor implicit bias toward black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results-which are both discouraging and encouraging-raise profound issues for courts and society. We find that judges harbor the same kinds of implicit biases as others; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the influence of these biases.
Supreme Court of Queensland, Equal Treatment Benchbook (2nd ed, 2016).
In Chapter 4 ‘Family Diversity’, the bench book states that, ‘when approaching issues of family violence, stereotypes about the gender of abusers and victims should be avoided: all family members, regardless of gender/sex or age, may be affected’.
There is a general discussion in Chapter 14 ‘Gender Equality’ on the dangers of stereotyping (see p.188).
International
Neilson, Linda C, Domestic Violence Electronic Bench Book (National Judicial Institute, 2020).
The bench book provides a discussion in Chapter 3: Social Context Use and Misuse at Section 3.2.2 of whether social context education can create judicial bias. It notes that ‘social context information, if misinterpreted or misused, can create bias’. Further, ‘[i]n the absence of evidence and proof of applicability of the social context information to the particulars of the case, it cannot be assumed that an individual has acted in accordance with a social trend or gender characteristic. In addition, the case law is clear that social context knowledge may not be used to determine individual credibility.’ The bench book also provides a list of questions that can identify the proper or improper use of social context information.
In Supplementary Reference Chapter 5: Culture in a Domestic Violence Context, there is an extensive discussion of cultural bias. It notes that ‘the first step in cultural awareness is appreciating the impact of dominant cultural identity on our own perception, values and self-identity. Individuals in dominant cultures commonly assume cultural education is unnecessary because they pride themselves in being ‘colour-blind’, just and equitable. It is important to realize, however, that this perspective may in fact be the result of lack of self-identification as a culturally or ethnically influenced being’. The bench book goes on to show that culture can affect judging in ways that we do not realise, and warns against cultural generalisation.
Australia
Department of Justice (WA), Equal Justice Bench Book (2nd edition September 2021).
Section 1.2 of the bench book provides a discussion on the avoidance of bias and stereotyping. It states that, ‘[j]udicial officers need to ensure that they do not treat anyone as a stereotype and/or make false assumptions about a particular individual, based on what they believe most people from that individual’s group value, or based on how they believe most people from that individual’s group behave. Judicial officers need a reasonable understanding of the range of values, cultures, lifestyles and life experiences of people from different backgrounds, together with an understanding of the potential difficulties, barriers or inequities people from different backgrounds may face in relation to court proceedings’.
The bench book further notes that while it is important to understand which groups are most likely to experience inequity, discrimination and/or disadvantage (see the rest of the bench book for a discussion of these groups), ‘every individual is the product of many different influences. Characteristics such as ethnicity, gender, religious affiliation, disability, sexuality and socio-economic background may or may not have a determining influence on any particular individual’s values, life experience or behaviour’.
There is a discussion of gender bias at 10.3.1 & 10.3.2
Judicial College of Victoria, Victorian Sentencing Manual (2021).
[2.2.2.2.3] Apprehended bias: The bench book notes:
At sentencing the judge or magistrate should maintain a neutral role and avoid adopting an inquisitorial position. This does not mean they cannot disclose concerns about aspects of the case. In fact there may be circumstances where the failure to do so amounts to a denial of procedural fairness. As Kirby P said in Chow v DPP, ‘there is a fine line between excessive and unjudicial intervention…and candid disclosure of matters of concern to invite response’. [Chow v DPP (1992) 28 NSWLR 593, [606], cited with approval in R v Grillo [2003] VSCA 143, [17]].
In informing the parties of its developing views, a court should take care not to give rise to an apprehension of bias. That is, it should not create a perception that it may not bring an impartial and unprejudiced mind to its task. [Livesey v New South Wales Bar Association(1983) 151 CLR 288, 293-94; Clarkson v The Queen (2011) 32 VR 361, 393–94 [132] (‘Clarkson’)].
The expression of tentative views during argument on matters that the parties are then permitted to address does not manifest bias [Gild[24]]. But a greater number of judicial interjections and the degree of their intrusiveness or tone, considered within the context of the entire proceeding, may create a reasonable suspicion of prejudgment [R v Charter [2002] VSCA 214, [24]].
Judicial Commission of NSW, Equality before the Law: Bench Book (2022).
Section 1 explains the principle of equality before the law and duty of judicial officers to act fairly and without discrimination. 1.4 discusses the need for judicial officers to be conscious of any possible personal biases or prejudices about people from different backgrounds and actively seek to neutralise these. 2.3.4 cautions judicial officers not to let stereotyped views about Aboriginal people unfairly influence their assessment. 3.3.5.2 provides guidance on avoiding stereotyping people from CALD backgrounds. 4.4.5 cautions judicial officers not to let personal views about a particular religion’s views or practice unfairly influence their assessment. 7.2 discusses gender bias in court. 8.5.3 and 9.6.4 respectively caution judicial officers not to let stereotyped views about lesbianism, homosexuality or bisexuality or stereotyped views about gender diverse people unfairly influence their assessment.
Judicial Commission of NSW, Rachlinkski, J. et al (2021) Does unconscious racial bias affect trial judges?(Republished in Handbook for Judicial Officers).
Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the Implicit Association Test, have found that most white Americans harbor implicit bias toward black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results-which are both discouraging and encouraging-raise profound issues for courts and society. We find that judges harbor the same kinds of implicit biases as others; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the influence of these biases.
Supreme Court of Queensland, Equal Treatment Benchbook (2nd ed, 2016).
In Chapter 4 ‘Family Diversity’, the bench book states that, ‘when approaching issues of family violence, stereotypes about the gender of abusers and victims should be avoided: all family members, regardless of gender/sex or age, may be affected’.
There is a general discussion in Chapter 14 ‘Gender Equality’ on the dangers of stereotyping (see p.188).
International
Neilson, Linda C, Domestic Violence Electronic Bench Book (National Judicial Institute, 2020).
The bench book provides a discussion in Chapter 3: Social Context Use and Misuse at Section 3.2.2 of whether social context education can create judicial bias. It notes that ‘social context information, if misinterpreted or misused, can create bias’. Further, ‘[i]n the absence of evidence and proof of applicability of the social context information to the particulars of the case, it cannot be assumed that an individual has acted in accordance with a social trend or gender characteristic. In addition, the case law is clear that social context knowledge may not be used to determine individual credibility.’ The bench book also provides a list of questions that can identify the proper or improper use of social context information.
In Supplementary Reference Chapter 5: Culture in a Domestic Violence Context, there is an extensive discussion of cultural bias. It notes that ‘the first step in cultural awareness is appreciating the impact of dominant cultural identity on our own perception, values and self-identity. Individuals in dominant cultures commonly assume cultural education is unnecessary because they pride themselves in being ‘colour-blind’, just and equitable. It is important to realize, however, that this perspective may in fact be the result of lack of self-identification as a culturally or ethnically influenced being’. The bench book goes on to show that culture can affect judging in ways that we do not realise, and warns against cultural generalisation.